Certification of two Counsel

Johnson v Fraser Coast Regional Council [2020] QDC 280

COSTS –ASSESSMENT OF COSTS –whether to certify costs of two counsel

The Plaintiff was successful in a Claim for personal injuries compensation pursuant to the Workers’ Compensation Rehabilitation Act 2003 (Cth). The Plaintiff sought the certification of two Counsel for the six-day trial. [1] Loury DCJ considered Stanley v Phillips (1966) 115 CLR 470 at 479-480 where it was held that the question of the engagement of two Counsel is dependant on the circumstances of the matter when considering justice between the parties. [3]

When considering whether to certify two Counsel for the trial Loury DCJ considered that:

1. While the trial was six days, cross-examination and arguments were actually limited to less than 3 days considering lengthy adjournments. [6] and [7]

2. The Plaintiff’s employment file was only disclosed at trial (no negative inference was inferred) and the matter was adjourned for Counsel to review the file. [6]

3. The allegations of fraud were not complex legal arguments as the arguments where actually limited to discrepancies in evidence which was able to be clarified in cross-examination. [10].

4. Counsel Sorbello had primarily dealings with the Plaintiff’s proceedings and R Morton was only instructed to lead at trial. Counsel Sorbello at the date of instruction had three years’ experience being called to the bar in 2012, however at trial had eight years’ experience. Counsel Morton at trial had 33 years’ experience and was not silk. [12]

Loury DCJ noted that there was no cross-claim, expert evidence was limited to medical evidence, there was a small number of witnesses and the issues were not complex. Accordingly, Loury DCJ disallowed the Application for the Certification of two Counsel [13]